COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-201-CR
CLARENCE PAINTER, III APPELLANT
A/K/A CHIP PAINTER
V.
THE STATE OF TEXAS STATE
------------
FROM THE 158TH DISTRICT COURT
OF DENTON COUNTY
MEMORANDUM
OPINION1
Appellant
Clarence Painter, III appeals his conviction for indecency with a child.
We will affirm.
In
August 1987, C.L., a twelve-year-old boy, told a recreation center employee that
appellant had molested him. Appellant and C.L.’s father were friends and
former neighbors. When C.L. lived in the same apartment complex as
appellant, he and his friends frequently spent time with appellant, and C.L.
slept over at his apartment on several occasions. C.L. made the outcry
shortly before appellant was due to pick him up from the recreation center and
keep him for the night.
The
recreation center employee counseled C.L., sent him home, and called the
police. When appellant arrived at the recreation center to pick C.L. up,
the employee told him to go away and refused to reveal C.L.’s
whereabouts. Eventually, appellant, C.L., C.L.’s parents, and the police
all ended up at C.L’s father’s house. At the house, the police talked
to C.L., his parents, and appellant separately. When they were through,
they allowed appellant to leave.
Within
a few days, appellant left the state and moved to Mexico. Shortly after he
left, appellant’s father received a letter from him that proclaimed his
innocence and explained that he was leaving the country because he feared being
arrested and tried for sexually abusing C.L.
On
February 11, 1988, appellant was charged by indictment with indecency with a
child. The State placed the warrant on the National Crime Institute
Computer. In December 2003, appellant was arrested in Arizona after a
traffic stop revealed the warrant. He waived extradition and traveled to
Denton County for trial. After a trial on the merits, a jury found appellant
guilty of the charged offense and assessed punishment at twenty years’
confinement and a $10,000 fine.
In
his first point, appellant contends that the trial court erred in overruling his
motion to dismiss for failure to grant a speedy trial. When reviewing a trial
court’s ruling on a speedy trial claim, we review legal issues de novo but
give deference to a trial court's resolution of factual issues. Kelly
v. State, No. PD-0023-04, 2005 WL 858027, at *3 (Tex. Crim. App. April 13,
2005); State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).
We give deference not only to a trial court's resolution of disputed facts but
also to its drawing of reasonable inferences from the facts. Kelly,
2005 WL 858027, at *3. The Sixth Amendment to the Constitution of the
United States provides that, "[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy. . . trial." U.S. Const. amend. VI. The right
to a speedy trial is fundamental and is imposed on the states by the Due Process
Clause of the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514,
515-16, 92 S. Ct. 2182, 2184-85 (1972). If a violation of the speedy trial right
is established, the only possible remedy is dismissal of the prosecution. Strunk
v. United States, 412 U.S. 434, 440, 93 S. Ct. 2260, 2263 (1973).
In
determining whether an accused has been denied his right to a speedy trial, we
use a balancing test to weigh the conduct of both the prosecution and the
defendant. See Barker, 407 U.S. at 530, 92 S. Ct. at 2192; Dragoo v.
State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). The factors to be weighed
include the length of the delay, the reason for the delay, the defendant's
assertion of his speedy trial right, and the prejudice to the defendant
resulting from the delay. Barker, 407 U.S. at 530, 92 S. Ct. at 2192;
Dragoo, 96 S.W.3d at 315. No single factor alone is necessary or sufficient
to establish a violation of the right to a speedy trial. Barker, 407 U.S.
at 530, 92 S. Ct. at 2192; Dragoo, 96 S.W.3d at 313.
The
first factor, length of the delay, is measured from the time the defendant is
arrested or formally accused. United States v. Marion, 404 U.S. 307, 313,
92 S. Ct. 455, 459 (1971); Dragoo, 96 S.W.3d at 313. We consider the
other three factors only when the delay is long enough to be presumptively
prejudicial to the defendant. Emery v. State, 881 S.W.2d 702, 708 (Tex.
Crim. App. 1994). In general, delay approaching one year is sufficient to
trigger a speedy trial inquiry. Doggett v. U.S., 505 U.S. 647, 652 n.1,
112 S. Ct. 2686, 2691 n.1; Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim.
App. 2003).
Here,
appellant was indicted in February 1988 and tried in April 2004, an interval of
sixteen years. A sixteen-year delay is long enough to be presumptively
prejudicial; therefore, we will consider the other three factors. Moreover,
because the delay here stretched far beyond the minimum needed to trigger the
inquiry, this factor weighs heavily in favor of finding a violation of the
speedy trial right. See Dragoo, 96 S.W.3d at 314; Zamorano v.
State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002).
When
assessing the second factor, the reason for the delay, we assign different
weights to different reasons. Barker, 407 U.S. at 531, 92 S. Ct. at
2192. A deliberate attempt to delay the trial in order to hamper the
defense weighs heavily against the government. Id., 92 S. Ct. at
2192. A more neutral reason, such as negligence or overcrowded courts,
also weighs against the government, though less heavily. Id., 92 S. Ct.
at 2192. A valid reason, such as a missing witness, will justify the delay and
weigh in the government’s favor. See id., 92 S. Ct. at 2192; Dragoo,
96 S.W.3d at 313-14. A delay attributable to the defendant may constitute
a waiver of his right to a speedy trial2 and,
therefore, weighs heavily against him. See State v. Munoz, 991 S.W.2d at
822; Webb v. State, 36 S.W.3d 164, 173 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d). The State has the initial burden of justifying a lengthy
delay. Emery, 881 S.W.2d at 708; Turner v. State, 545 S.W.2d
133, 137-38 (Tex. Crim. App. 1976).
Here,
the State cited appellant’s intentional absence from Texas as the reason for
the delay. The record shows that the lengthy delay between appellant’s
indictment and trial was caused by appellant’s leaving the state and moving to
Mexico shortly after C.L.’s outcry in an effort to avoid arrest and
prosecution for the present offense. Because the delay is attributable to
appellant, this factor weighs heavily against him.
The
third factor, defendant's assertion of his speedy trial right, is entitled to
strong evidentiary weight in determining whether the defendant is being deprived
of the right. Barker, 407 U.S. at 531-32, 92 S. Ct. at
2192-93. A defendant has some responsibility to assert his right to a
speedy trial, and his failure to do so strongly indicates that he did not really
want a speedy trial. See Harris v. State, 827 S.W.2d 949, 957 (Tex.
Crim. App. 1992). This factor weighs in favor of appellant because he
asserted his right to a speedy trial within four days of his arraignment in his
motion to dismiss on January 22, 2004, and again in his motion for speedy trial
on March 4, 2004.
Prejudice,
the fourth factor, is to be considered in light of the interests that the right
to a speedy trial was designed to protect. Barker, 407 U.S. at 532,
92 S. Ct. at 2193. These interests include prevention of extended pretrial
incarceration, minimization of anxiety over pending charges, and the prevention
of actual prejudice to the defendant's ability to present a defense. Id.
Proof of actual prejudice is not essential to every speedy trial claim because
"excessive delay presumptively compromises the reliability of a trial in
ways that neither party can prove or, for that matter, identify." Dragoo,
96 S.W.3d at 315 (citing Doggett, 505 U.S. at 655, 112 S. Ct. at
2693). A presumption of prejudice, however, is extenuated by the
defendant's acquiescence in the delay. Id.; Doggett, 505
U.S. at 658, 112 S. Ct. at 2694. The defendant has the initial burden of showing
of prejudice. Emery, 881 S.W.2d at 709.
Appellant
contends that the delay was prejudicial because it caused him anxiety and
impaired his defense. Appellant points to the farewell letter he wrote to
his father before leaving the country as proof of his anxiety. The anxiety
expressed in the letter, however, could not have been caused by the delay
because the letter was written before the indictment issued, before the delay
began.
Appellant
also complains that his defense was impaired because he was unable to find any
of the people with whom he had lived and worked in the 1980s and because he was
not given time to secure the testimony of the people with whom he had lived and
worked during his absence from the state. Appellant did not show prejudice
with respect to the lost witnesses from the 1980s, however, because he failed to
demonstrate that the witnesses were unavailable, that their testimony would be
material and relevant, and that he exercised due diligence in an attempt to
locate them. See Phipps v. State, 630 S.W.2d 942, 947 (Tex. Crim.
App. 1982); Ervin v. State, 125 S.W.3d 542, 548 (Tex. App.—Houston [1st
Dist.] 2002, no pet.); Parkerson v. State, 942 S.W.2d 789, 792 (Tex.
App.—Fort Worth 1997, no pet.). His inability to procure the testimony
of the people with whom he lived and worked during his absence from the state
was not caused by the delay. In fact, but for appellant’s fleeing the
state, those people would not have been potential witnesses. This factor
weighs against appellant.
Having
addressed the four Barker factors, we must now balance them.
Weighing in favor of finding a violation of appellant's speedy trial right are
the facts that the delay was excessive and that appellant asserted his right to
a speedy trial. Weighing against finding a violation of the right are the
facts that appellant caused the delay and failed to demonstrate prejudice.
We hold that the four factors, balanced together, weigh against finding a
violation of appellant's right to a speedy trial. Accordingly, we overrule
appellant’s first point.
In
his second point, appellant contends that the trial court erred in failing to
grant his motion for continuance. Appellant filed a motion for continuance
due to the absence of several witnesses. To preserve the issue of the
denial of a motion for continuance due to a witness’s absence, an appellant
must file a written motion for new trial alleging that the motion for
continuance was improperly denied. Taylor v. State, 612 S.W.2d 566,
569 (Tex. Crim. App. [Panel Op.] 1981); Hartson v. State, 59 S.W.3d 780,
784 (Tex. App.—Texarkana 2001, no pet.); Outland v. State, 810 S.W.2d
474, 475 (Tex. App.—Fort Worth 1991, pet. ref’d). Appellant did not
file a motion for new trial; therefore, he did not preserve this point for our
review. Accordingly, we dismiss appellant’s second point.
In
his third point, appellant contends that the trial court erred in admitting
“other bad acts” evidence against him. Specifically, he argues that
the complainant’s testimony that appellant asked him to disrobe to “make a
movie,” videotaped him wearing his underwear, had sexual contact with him
while he was bathing, and had sexual contact with him on other unspecified dates
was inadmissible under Rules 404(b) and 403 of the Texas Rules of Evidence.
Under
Rule 404(b), evidence of other crimes, wrongs, or acts is inadmissible if it is
offered to prove the character of a person in order to show action in conformity
therewith. Tex. R. Evid. 404(b).
Notwithstanding Rule 404, evidence of other crimes, wrongs, or acts committed by
a defendant against the child who is the victim of the alleged offense is
admissible for its bearing on relevant matters, including the state of mind of
the defendant and the child and the previous and subsequent relationship between
the defendant and the child. Tex. Code
Crim. Proc. Ann. art. 38.37 (Vernon 2005); Jones v. State, 119
S.W.3d 412, 420 (Tex. App.—Fort Worth 2003, no pet.).
Evidence
that is admissible under article 38.37 may be excluded under Rule 403 if its
probative value is substantially outweighed by the danger of unfair prejudice. See
Tex. R. Evid. 403; Jones,
119 S.W.3d at 421. To determine whether the probative value of evidence of an
extraneous offense is outweighed by its prejudicial effect, we look to how
compellingly the evidence serves to make a fact of consequence more or less
probable, the potential the evidence has to impress the jury “in some
irrational but nevertheless indelible way,” the time the State will need to
develop the evidence, and the force of the State’s need for the evidence. Mozon
v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); Jones, 119
S.W.3d at 421-22. We review a trial court's Rule 403 determination for a
clear abuse of discretion. Mozon, 991 S.W.2d at 847; Jones, 119
S.W.3d at 421-22.
The
complainant’s testimony was probative to show appellant’s state of mind and
their relationship. When viewed with the other evidence, it is unlikely that
this testimony left an indelible impression on the jury that would preclude it
from rational deliberation. Further, the State used little time to elicit
the testimony. We hold that the trial court did not clearly abuse its
discretion in admitting the challenged testimony. Accordingly, we overrule
appellant’s third point.
In
his fourth point, appellant contends that the trial court erred in denying his
motion to elect. As a general rule, when “evidence of multiple occurrences of
the acts alleged in the indictment are presented at trial, upon request, the
State is required to elect which of the instances of the charged acts it will
rely on for purposes of conviction." Mayo v. State, 17 S.W.3d
291, 298 (Tex. App.—Fort Worth 2000, pet. ref'd) (op. on remand); O'Neal v.
State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). The trial court may
order the State to make its election at any time prior to the resting of the
State's case in chief. Scoggan v. State, 799 S.W.2d 679, 680 n.3
(Tex. Crim. App. 1990); O’Neal, 746 S.W.2d at 772. Once the State
rests its case in chief, however, in the face of a timely request by the
defendant, the trial court must order the State to make its election. O’Neal,
746 S.W.2d at 772. Failure to do so constitutes error. Id.
In
this case, the indictment alleged one act of indecency with a child,3 the State presented evidence of at least three discrete
acts of indecency with a child that fit the offense as described in the
indictment, and appellant made a timely request for the trial court to require
the State to elect the act upon which it was relying for conviction.4 Therefore, the trial court erred by failing to order
the State to make an election.
The
State’s failure to elect a specific act did not harm appellant, however,
because the record clearly indicates which act the State was relying upon for
conviction. See id. at 772-73 (holding that “[b]ecause the
evidence herein clearly gave notice to the appellant which act of intercourse
the State would rely upon for conviction, by the close of the State's evidence,
the appellant was not harmed by the State's late election”). Although
the State presented evidence that appellant fondled C.L. five or six times
within the applicable statute of limitations period, the State’s case clearly
focused on the one act of abuse that occurred in 1987. In addition to
eliciting detailed testimony from C.L. about the 1987 incident, the State’s
prosecuting attorney emphasized it over the other acts in his opening and
closing arguments. Because the State was clearly relying upon the 1987 act
for conviction, its failure to elect was harmless. Id.
Accordingly, we overrule appellant’s fourth point.
In
his fifth point, appellant contends that the trial court erred in denying his
application for deposition. We review the trial court’s denial of
appellant’s application for deposition for an abuse of discretion. See
Janecka v. State, 937 S.W.2d 456, 469 (Tex. Crim. App. 1996); May v.
State, 738 S.W.2d 261, 273 (Tex. Crim. App. 1987). A criminal
defendant who seeks to depose a witness must file an application and an
affidavit stating the facts necessary to constitute a good reason for taking the
deposition. Tex. Code Crim. Proc.
Ann. art. 39.02 (Vernon 2005). Without a proper affidavit, the
court is without discretion and must deny the defendant’s motion. State
ex rel. Simmons v. Moore, 774 S.W.2d 711, 715 (Tex. App.—El Paso 1989, no
pet.); Bryant v. State, 685 S.W.2d 472, 473 (Tex. App.—Fort Worth 1985,
pet. ref’d). A verified application does not meet the affidavit
requirement of article 39.02. See Simmons, 774 S.W.2d at 714-15.
Although
appellant’s application for deposition was verified, it did not contain an
affidavit. Therefore, the trial court did not abuse its discretion in
denying it. Accordingly, we overrule appellant’s fifth point. The
trial court’s judgment is affirmed.
PER
CURIAM
PANEL A: CAYCE,
C.J.; HOLMAN, J.; and SAM J. DAY, J. (Retired, Sitting by Assignment).
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 26, 2005
NOTES
1.
See Tex. R. App. P. 47.4.
2.
“[I]f the delay is attributable to the defendant, then his waiver may be given
effect under standard waiver doctrine, the demand rule aside.” Barker,
407 U.S. at 529, 92 S. Ct. at 2191.
3.
The indictment alleged that appellant “on or about the 31st day of July, A.D.
1987 . . . knowingly and intentionally engage[d] in sexual contact with [C.L.],
a male child not the spouse of [appellant] and younger than 17 years of age by
then and there touching the genitals of [C.L.] with the intent to arouse and
gratify the sexual desire of [appellant].”
4.
Appellant moved for an election at the beginning of trial and reurged the motion
at the close of the State’s case in chief and at the close of all evidence.